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I Filed an I-751, but I am Getting Divorced and the Divorce is Not Final, What Happens Now?
Angelica Rice • Jan 29, 2022
Click here to read this article in Portuguese and Spanish
If you and your spouse were married for less than 2 years at the time of your I-485 (Adjustment of Status) interview and your application was approved, your lawful permanent resident status is conditional and a separate petition to remove those conditions (I-751 petition) must be filed within 90 days of the expiration date on your Green Card.
An I-751 petition is a joint petition, filed by the Green Card holder and their spouse, that requests USCIS remove the conditions and issue you permanent resident status and a new 10-year Green Card. However, what if after filing the I-751 petition, you and your spouse decide to get divorced?
In such situations, the Green Card holder can request a waiver of the joint petition filing requirement and submit this request with their I-751 petition. Even if you are requesting an I-751 waiver, you must still show that the marriage was originally entered into in good faith. This means that you will still need to prove to USCIS that you entered into the marriage for love and not just to obtain a Green Card. Evidence of good faith can include, but is not limited to, the marriage certificate, joint documents, birth certificates of children born of the marriage, etc.
Documentation that can/should be submitted with your I-751 waiver request include copy of your green card, documentation regarding the circumstances surrounding the end of your marriage, evidence that the marriage was entered into in good faith, copy of the divorce decree (or evidence that divorce proceedings have been initiated if not yet final), statement from you regarding the circumstances, etc.
USCIS reviews waiver requests on a case-by-case basis. Current USCIS policy guidance indicates that if a waiver request is made and the divorce is not yet final, USCIS should issue a Request for Evidence (RFE) with a response period of up to 87 days. In the RFE, the officer will request that you provide a copy of the final divorce decree and a statement from you officially asking that the I-751 petition be converted to a waiver application (if not already provided), along with any other documents they deem necessary to decide the case.
As long as you can provide these documents to USCIS by the response deadline, the officer can amend the I-751 petition indicating that you are eligible for a waiver based on the termination of the marriage and can adjudicate the petition as such without the need to re-file the application. USCIS will then evaluate whether or not the good faith requirement has been met and may schedule the case for an in-person interview. If the application is approved, then you will be issued your 10-year Green Card. If the application is denied, then your case may be referred to immigration court and you may be placed in removal proceedings.
I-751 waiver cases are a complicated matter. If you or someone you know find themselves in a situation like the one mentioned above, please contact our experienced immigration attorneys at Santos Lloyd Law Firm for assistance with your case.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
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